Voices in Justice: parole reform consultation

3. Parole Process, Licence Conditions And Recall

This section invites respondents to consider the parole system in its constituent parts, including the decision-making function of the Parole Board, the tests and factors that the Board may consider in its decision making; and how people can gain understanding, confidence and transparency in that decision making. This section will also seek views on how licence conditions are used in the parole process when an individual is recommended for release under supervision by justice social work. It will also review the system of recall; where individuals who breach licence conditions may be referred to the Parole Board to make a decision on their potential return to custody.

The overarching aim of Parole Board decisions is to protect the public, while supporting safe and sustainable reintegration into the community for people in custody. The Board focuses on the likelihood of reoffending if an individual is released and the potential harm that could result. This assessment is informed by multiple professional reports from, for example, justice social workers, prison staff, and psychologists.

As part of this, the Board considers factors including:

• The nature and seriousness of the original offence and previous offending
• The person’s behaviour in custody
• Any community access undertaken by the person while serving the sentence
• Engagement with rehabilitation
• The support available in the community
• Representations from victims/survivors
• Representations from the person in custody
• Relevant health reports

If the Board is satisfied that any risks can be managed through supervision (by justice social work in the community) and licence conditions, release may be recommended or directed depending on sentence type.

Latest data shows that the majority of decisions result in a recommendation not to release individuals from custody^[1]. For more information please visit Parole Board's statistics published in its Annual Reports.

3.1 Test for release

Currently, the Board applies different tests for release depending on the type of sentence, including:

• Indeterminate sentences (e.g. life sentences, Orders for Lifelong Restriction): the test, set out in legislation^[16], is that the Parole Board has to be satisfied that it is no longer necessary for the protection of the public that the person should be confined.
• Determinate and extended sentences (custodial part): the test is that the Parole Board must be satisfied that such risk as the person poses can be managed safely in the community. This is published in Parole Board guidance and not in legislation.
• Extended sentences^[17] (where the person has been released and subsequently recalled to custody): the test, set out in legislation^[18], is that the Parole Board must consider whether it is necessary for the protection of the public from harm or serious harm that the person should be confined”.

Some stakeholders have suggested that, in practice, the application and interpretation of these tests can be too prescriptive and dependent on individuals’ completing progression programmes while in custody. In addition, stakeholders have proposed that a single, unified test which covers all type of sentences could be more beneficial than the current approach.

For example, in Ireland^[19], where the Parole Board’s remit is to consider only life sentenced persons, the Board may make an order for an applicant to be released on parole where it is satisfied that:

• The parole applicant would not, upon being released, present an undue risk to the safety and security of members of the public including the relevant victim, and;
• The parole applicant has been rehabilitated and would, upon being released, be capable of reintegrating into society, and;
• It is appropriate in all the circumstances that the parole applicant be released on parole.

In Canada^[20], the criteria^[21] for granting parole are:

• The offender will not, by reoffending, present an undue risk to society before the expiration according to law of the sentence the offender is serving; and
• ^· The release of the offender will contribute to the protection of society by facilitating the reintegration of the offender into society as a law-abiding citizen.

Question 15. Do you support the introduction of a single over-arching, statutory test for release that would apply to all cases considered for release by the Parole Board?

• Yes – I support a single test for all cases.
• No – I believe different tests should continue to apply depending on sentence type.
• Other
• Not sure / No opinion
• Please explain your answer

Question 16. Regardless of whether a single test is introduced, or the current process is retained, should the test(s) for release from custody continue to focus solely on risk, or should they be amended to also consider a person’s readiness to reintegrate into the community?

• The test(s) should continue to be based solely on risk assessment.
• The test(s) should combine risk assessment with an individual’s readiness to reintegrate.
• Other
• Not sure / No opinion
• Please explain your answer:

Question 17. Do you have any other views on the assessment and decision-making process around release – for example, other aims that should be reflected, improvements that could be made, or changes in how risk is considered?

3.2 Progress Review Hearings

The Scottish Government consultation, Transforming Parole in Scotland (2019), highlighted support for a more flexible approach to how hearings are set by the Parole Board so that they are tailored to individual cases. In response to the previous consultation, the Scottish Government proposed the development of a mechanism where the Parole Board could schedule additional review hearings, to monitor compliance with licence conditions in the initial months following release. Following this, the Parole Board could then consider adjusting any licence conditions, accordingly, based on evidence of risk posed.

The majority of respondents to the consultation were supportive of enabling the Parole Board to have the power to conduct additional review hearings however, the impact of the Covid-19 pandemic on prison, parole, policy and social work resources prevented further development of this type of Parole Board hearing.

We would now like to revisit the option of a developing a new system of ‘progress’ hearings. This type of hearing could also be an option available to justice social workers when the Board is asked to consider cases of recall – i.e. to raise relevant issues at a progress hearing - depending on the circumstances of the case and the risk and needs of the individual.

New Zealand is an example of a jurisdiction which holds progress hearings. The New Zealand Parole Board^[22] may require those individuals released on licence to attend a progress hearing for up to one-year post-release. For those released at their statutory release date a progress hearing can be set for up to six months from the date of release. Progress hearings cannot be held more frequently than every three months, and the Board may vary or impose new release (licence) conditions, seek progress reports on the individual’s circumstances and/or require the person to attend the progress hearing in person, and may also make a ‘recall order’.

We would like to hear views on the introduction of a progress hearing, or similar, in Scotland.

Question 18. In principle, do you support the idea of giving the Parole Board for Scotland the power to require post-release progress hearings, at which they can take action based on the person’s progress while in the community on parole?

• Yes
• No
• Other
• Not sure / No opinion
• Please explain your answer:

Question 19. If progress hearings were introduced, what changes do you think the Parole Board should have the power to make, based on the person’s progress while in the community on parole? (select all that apply)

• Vary the detail of existing licence conditions.
• Impose new conditions.
• Recall the person back to custody.
• Other
• Not sure / No opinion
• Please explain your answer:

Question 20. If progress hearings were introduced, how long after someone is released on parole should the Board have the power to call a progress hearing for them?

• One year (replicating New Zealand model).
• Less than one year.
• A set time period longer than one year.
• The full length of a person’s parole.
• Other
• Don’t know / No opinion
• Please explain your answer:

Question 21. If progress hearings were introduced, how frequently should the Board have the power to call a progress hearing for someone on parole in the community?

• No more than every 3 months (replicating New Zealand model).
• No more than every 6 months.
• No more than annually.
• Only when a specific reason arises.
• As frequently as the Board sees fit (i.e. no limit).
• Other
• Not sure / No opinion
• Please explain your answer:

3.3 Professional composition of parole hearing panels

Oral hearings held by the Parole Board are used for all persons in custody serving an indeterminate sentence and may be used for other types of cases too. The oral hearing is not the format for every type of case, and the Parole Board also hold casework review meetings which is a paper-based review where the person in custody (and other parties) is not present (see Annex B).

Currently, oral hearing panels of the Parole Board for Scotland are typically made up of three members, including at least one legally qualified member. Other members may come from a range of professional backgrounds, such as psychology, social work, police, or criminal justice.

Feedback from some stakeholders has suggested that the law should require certain professional roles, such as a psychologist or a social worker, to be represented on every panel to ensure a consistent, balanced, and informed approach to decision-making. Others feel that flexibility is important, allowing panels to be tailored to the specific needs of each case by drawing on a broad range of expertise.

Question 22. Should the law require that certain professions or expertise must always be represented on a Parole Board oral hearing panel?

• Yes – specific backgrounds should be legally required on every oral hearing panel.
• No – oral hearing panel composition should remain flexible.
• Other
• Not sure / No opinion
• Please explain your answer:

Question 23. If specific professions or expertise were to be required at Parole Board oral hearings, which specific professions or expertise do you feel should be included?

3.4 Factors considered in parole decisions

As mentioned above, when making decisions on release, the Parole Board considers all available and relevant information in the case including all the reports contained within the referred dossier. The Parole Board will also take into consideration a number of matters as required by the Parole Rules.

The Parole Rules currently list the following examples of the factors relating to the person’s case that may be considered by the Board:

(a) the nature and circumstances of any offence of which the person has been convicted or found guilty by a court;

(b) the conduct of the person over the duration of their current sentence or sentences;

(c) the risk of the person committing any offence or causing harm to any other person if released on licence;

(d) what the person intends to do if released and the likelihood of that person fulfilling those intentions;

(e) the effect on the safety or security of any other person (including any victim or any family member of a victim, or any family member of the person concerned), were the person to be released;

(f) where the panel believes that the person has information about where or how the victim’s remains were disposed of which that person has not disclosed.

This list is not exhaustive, and the Parole Board can take into consideration any matter that appears to them to be relevant in making their decision.

The Victims, Witnesses and Justice Reform (Scotland) Bill was amended at Stage 2 to enhance the ability of the Parole Rules to set out matters which must be considered by the Parole Board in relation to a case. In particular, the Parole Rules will in future – subject to agreement of the Bill by the Scottish Parliament - require to set out that the Board must (rather than may) consider whether the person in prison has information about where or how the victim’s remains were disposed of which that person has not disclosed. If the Bill is passed by Parliament, this will become law.

Question 24. Do you believe that there should be any further changes to the current list of factors, set out above, which may be taken into consideration by the Parole Board when making a decision on a prisoner’s release?

3.5 Review and Appeal

The 2019 Transforming Parole in Scotland^[23] consultation raised the question of a parole review and appeal process, included within the context of an over-arching question of potentially moving the Parole Board for Scotland to the Scottish Courts and Tribunals Service (SCTS). Within this context, the majority of respondents to the 2019 consultation felt there should be a review and appeal process.

At present there is no appeal process for parole decisions. For example, if a person in prison wishes to challenge a decision not to release them the only route open to them is to seek a judicial review. Provisions incorporated into the 2022 Parole Rules allow for internal review of parole decisions where there has been an administrative error or procedural defect. This applies only to decisions not to release a prisoner.

A further provision has been made in Section 10 of the Bail and Release from Custody (Scotland Act) 2023^[24]. This will, in future allow reconsideration of release decisions in certain circumstances, where additional information comes to the attention of the Board which may have changed the decision, had it been available to them earlier.

Currently, there are no plans to significantly alter the existing governance structures of the Parole Board for Scotland, nor any plans to consider moving the Parole Board to the SCTS.

The Parole Board for England and Wales have a reconsideration process in their equivalent Parole Board Rules. To enable this to operate, certain Parole Board for England and Wales decisions are provisional for three weeks and then become final if there is no appeal. Rule 28 of the England and Wales Parole Rules covers this^[25].

We would like to revisit the area of ‘review and appeal’ in parole decisions but within existing governance structures, to consider whether a formal, statutory mechanism should be developed whereby the Parole Board’s decisions could be subject to review or appeal.

Question 25. What are your views on exploring a means to develop a formal review and appeal process for parole decisions, and who could this apply to?

• A formal appeal or review process should be introduced for both the person in prison and the victims/survivors of the crime.
• A formal appeal or review process should be introduced but only for the person in prison.
• A formal appeal or review process should be introduced but only for victims/survivors of the crime.
• The current system is sufficient.
• Other
• Not sure / No opinion
• Please explain your answer:

3.6 Licence Conditions

Currently, long-term prisoners^[26], individuals subject to a life sentences, and individuals subject to an Order for Lifelong Restriction, who are recommended by the Parole Board to be released from prison are subject to licence conditions. This means that the individual must comply with a set of conditions while living in the community for a specified period depending on their type of sentence and Parole Board recommendations. Licence conditions are a vital part of the parole process; they help to manage risk and support reintegration. Annex C provides detail on the existing template used by the Parole Board for Scotland when recommending licence conditions. This covers the most commonly used conditions but is not exhaustive.

The Parole Board, in recommending conditions, will consider information and evidence received, for example, from justice social work, risk assessments from prison establishments and representations received from victims.

Parole licence conditions are tailored to manage risk and support reintegration into the community. These conditions are grouped into several categories, depending on the nature of the offence, the risk posed, and the individual’s needs.

These include:

• Standard Licence Conditions - these apply to most individuals released on parole or non-parole licence and typically include:
  • Supervision by a justice social worker.
  • Regular contact with supervising officers.
  • Residence at an approved address.
  • Good behaviour and no further offending.
  • Notification of changes in address or employment.
• Specific Licence Conditions - these may be imposed based on individual risk assessments and could include:
  • Restrictions on contact with certain individuals (e.g. victims or co-offenders).
  • Exclusion zones (areas the person must not enter).
  • Curfews or electronic monitoring.
  • Prohibition on alcohol or drug use.
  • Attendance at treatment or rehabilitation programmes.
  • Restrictions on internet or device use (especially in sexual offence cases).
• Special Conditions for Certain Sentences
  • Extended Sentences: Conditions extend into the community supervision period after the custodial term.
  • Life Sentences: Conditions may be more stringent and lifelong.
  • Terrorism-Related Offences: May include specific counter-terrorism measures.

If an individual is not released on the recommendation of the Parole Board, they will be released under statutory provisions automatically at a point before their sentence ends on non-parole licence. The person is then released on the non-parole licence for the remaining term of the sentence (see Annex B – glossary of terms). The licence conditions for the non-parole licence are still set on the recommendation of the Parole Board and conditions may be the same whether it is parole, or non-parole licence.

Some stakeholders have raised concerns that licence conditions can be too complex and restrictive which can then result in easy-to-make breaches which does not support rehabilitation and reintegration into the community.

In some countries, for example in New Zealand, licence conditions may feature within a structured, guided release initiative^[27] designed to more actively support individuals in their transition from custody to community. These conditions are person-centred, taking into account the specific reintegration needs of the individual.

We would like to hear your views on if there are ways that Scotland’s current licence conditions could be improved to support successful reintegration into community.

Question 26. Do you think that the current approach to licence conditions should be reviewed?

• Yes
• No – the current approach works well.
• Other
• Not sure / No opinion
• Please explain your answer:

Question 27. Do you feel that the language used in licence conditions (see Annex C) is clear and accessible for all people who need to understand and follow them?

• Yes
• No
• Other
• Not sure / No opinion
• Please explain your answer:

Question 28. Do you feel that licence conditions are currently well designed to maximise successful rehabilitation and reintegration?

• Yes
• No
• Other
• Not sure / No opinion
• Please explain your answer:

Question 29. What changes, if any, would make licence conditions more supportive of rehabilitation and reintegration in your opinion?

3.7 Purpose of recall and what it means for people

Recall to custody refers to the process by which a person who has been released from prison on licence has their licence revoked by the Scottish Ministers and is returned to prison. The standard process follows where an individual in the community under supervision and on licence, is deemed to have disengaged or ‘breached’ such conditions, and their social worker would like to escalate the case. The local authority will subsequently report the individual and circumstances to Scottish Ministers, who will then refer the case to the Parole Board to decide on the case. The process^[28] may be initiated because:

• The person has breached one or more conditions of their licence and may no longer be manageable in the community, or/and
• ^· It is deemed necessary in the public interest (e.g. due to an increased risk to public safety).

When considering whether to recall someone, or whether continued detention is necessary following recall, the Parole Board applies the following non-statutory test in deciding if the person can remain out of custody:

“The panel must be satisfied that such risk as [X] poses can be managed safely in the community.”

When a recall request is considered, the Parole Board currently has three options:

i. Issue a formal warning letter to the individual,

ii. Direct that the individual be recalled to custody, where a re-release consideration would be scheduled to be held in the following weeks, or

iii. Take no action.

As an alternative to this standard process, in cases where there appears to be an immediate need to protect the public, the Scottish Ministers may recall an individual to custody, and revoke the licence, without referring the case to the Board. This may only be done where it appears to the Scottish Ministers to be expedient in the public interest, and it is not practicable (for example because of the need to protect the public from an immediate risk) to await the Board’s recommendation.

Our engagement with justice partners has suggested that the current approach of warning, recall or no action may be too limited, and a broader range of options for justice professionals could better reduce unnecessary returns to custody and improve outcomes for both individuals and communities.

Switchback, a London‑based, charity dedicated to supporting young men aged 18–30 leaving prison published a comprehensive report based on research into prison recall and its significance for effective resettlement and reducing the prison population in England and Wales.^[29] One of its key findings highlighted the damage to positive progress that avoidable recalls may have.

We would like to hear views on the process of recall in Scotland.

Question 30. What are your views on the options currently available to the Parole Board when they consider a request for recall (warning letter, recall to custody or no action)? (select all that apply)

• I think that the current options are adequate.
• I think that more options for responding to the request should be available to the Board.
• I think one or more of the current options should be removed.
• Other
• Not sure / No opinion
• Please explain your answer:

Question 31. If the Board were to have more options for responding to a potential licence breach or request for recall, what should these be in your opinion?

Question 32. Do you support enabling the Parole Board for Scotland to set a progress hearing as an additional option in cases where the Board are deciding on recall?

• Yes – this would be a welcome approach and provide alternative, individualised options.
• Yes – this would be a welcome approach, but this should be a progress hearing only, and not an opportunity to make a decision on recall.
• No – the current options available to the Parole Board are satisfactory.
• Other
• Not sure / No opinion
• Please explain your answer:

Question 33. If recall decisions were to be based on a wider range of factors, which specific issues should be taken into account?

Question 34. If any, what other suggestions do you have for improving the recall process in Scotland?

3.8 Re-release considerations

If the Parole Board recommends the revocation of an individual’s licence, or in a case where a licence was revoked without the recommendation of the Board because of the immediate need to protect the public, a further hearing, known as a re-release hearing, is scheduled. Often this will be held approximately six to eight weeks later but under current arrangements there is no specified timeframe between the decision to recall an individual to custody and their re-release hearing.

The hearing is designed to ensure that there is a robust process in place where all information is made available to the Board to make a further recommendation - re-release or no release. The Board will consider if the risk posed can be safely managed in the community and the Board is required to determine if the individual should remain in custody. Re-release is considered by a panel made up of different members of the Board from the members who considered an individual’s initial recall to ensure fairness. The data collected by the Parole Board under sentence type, would indicate the vast majority of re-release hearings result in a recommendation not to release.^[30]

We would like to hear your views on the current process of re-release hearings by the Parole Board.

Question 35. Do you feel that re-release process is effective at supporting the initial decision to recall?

• Yes, the current system works well ensuring that recalled individuals are subject to a further hearing where all information is made available.
• No, the decision to recommend recall to custody has been made and re-release hearings may be unnecessary in some cases.
• The nature of the re-release hearing could be a different format (please explain below).
• Other
• Not sure / No opinion
• Please explain your answer:

Question 36. Do you believe there should be a firm timeframe set out for re-release hearings?

• Yes, within two weeks of being recalled to custody.
• Yes within four weeks of being recalled to custody.
• No, it should be held whenever possible but without any set timescales.
• Other
• Not sure /No opinion
• Please explain your answer:

Question 37. If any, what other suggestions do you have on the format and timings of the Parole Board’s re-release hearings?

3.9 Deferrals

Deferrals relating to Parole Board oral hearings can occur for a range of reasons, including unavailable witnesses or the need for additional information for the Board to consider their decision. In 2023/24, the deferral rate for oral hearings was 31.7%, representing a fall from the previous year’s deferral rate of 35.2%. This was following the introduction of a triage process by the Parole Board for Scotland which assesses all information provided at an earlier stage in the process, and other measures implemented to reduce deferrals.

Question 38. If you have been connected to a case (or cases) where a parole hearing was deferred, do you know what was the reason for deferral?

Question 39. Are there any changes you believe could be made to improve efficiencies and minimise deferral of Parole Board hearings?

3.10 Timescales for parole reviews

This section seeks your views on the timelines for parole reviews. People in custody are entitled by law to be considered for parole once they have served part of their sentence - this is known as the Parole Qualifying Date (PQD).

For people serving long term determinate sentences (more than 4 years) or extended sentences longer than 4 years, the PQD is once they have served half of their sentence.

A life sentence prisoner is told at the time of sentencing in court what the minimum period is that they must spend in prison. This is sometimes referred to or known as the ‘punishment’ or custodial part of the sentence. They will have their case considered by an oral hearing panel of the Parole Board as soon as possible after the custodial part has expired.

If the Parole Board decide not to recommend release of the individual at the first review, then their case will be reconsidered at no more than:

• 12-month intervals for long term determinate and extended sentences, until the person in custody reaches their Earliest Date of Liberation, and
• 24 months for life sentences and those sentenced to an Order for Lifelong Restriction (OLR). The dates of the subsequent reviews will be set by the oral hearing panel and must be within 24 months.

The Management of Offenders (Scotland) Act 2019 (Section 51) was passed to formalise eligibility periods for review in cases other than life sentences and OLRs, but the relevant provision has not yet been commenced and therefore is not currently a statutory requirement. Review periods for such cases are therefore currently determined by operational practice.

Under current practice, when someone serving a fixed term or extended sentence of 4 years or more is denied parole, they will be reconsidered for parole within 12 months.

Question 40. Which of the following best represents your view on this timescale?

• 12 months seems appropriate; there is no need for change.
• 12 months is too frequent, the length between parole hearings should be extended.
• 12 months is not frequent enough, the length between parole hearings should be shortened.
• The timeframe should be flexible, and set based on the individual case, with no maximum time between opportunities to be considered for parole.
• Other
• Not sure / No opinion
• Please explain your answer:

When someone serving a life sentence or Order for Lifelong Restriction is denied parole, they will be reconsidered for parole within 24 months. This is a statutory requirement.

Question 41. Which of the following best represents your view on this timescale?

• 24 months seems appropriate; there is no need for change.
• 24 months is too frequent, the length between parole hearings should be extended.
• 24 months is not frequent enough, the length between parole hearings should be shortened.
• The timeframe should be flexible, and set based on the individual case.
• Other
• Not sure / No opinion
• Please explain your answer:

Question 42. If someone is denied parole, what factors do you think should be considered in determining how long it should be before that person comes before the Parole Board again?

Question 43. What category best describes your situation – please tick all that apply:

• I am the victim or survivor of a crime.
• I am a family member or friend of the victim or survivor of a crime.
• I have served time in prison, but have not served time on parole.
• I have served time in prison, including serving part of my sentence on parole in the community.
• I am a family member or friend of someone who has served time in prison, but they did not serve time on parole.
• I am a family member or friend of someone who has served time on parole.
• I am a professional who works in the justice sector.
• I am a solicitor.
• I work with Victim Support Organisations.
• I am a member of the public with an interest in this area.
• Other, please specify